Keith Whittington’s Repugnant Laws is an impressively thorough, empirical study of judicial review, from the founding to the Supreme Court’s 2017 term. The book makes for rewarding reading; the only disappointment is a too-brief discussion of what the evidence suggests about the present Court and its predicament.

The book employs a novel approach to judicial review by examining cases in which the Court upheld the constitutionality of federal statutes. It is a massive undertaking, for the Congressional Research Service only lists cases when the Court “strikes down” federal statutes, in whole or in part—not when it sustains federal statutes against constitutional challenges. (“Strike down” is an awful term of convenience. The judiciary has no such power—only the power to declare a statute cannot be constitutionally applied by a court.) Omitting “positives”—cases sustaining federal statutes—understates the Court’s role in judicial review; counting only “negatives”—judicial invalidations—overstates the justices’ role as guardians of the constitutional order against an imperious Congress.

Legal research software yielded Whittington some 10,000 potential cases, which he sifted to distinguish

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